The other day I posted about the referendum bill and suggested that one of the reasons the bill was likely to be dropped by the Scottish government was that the bill fell outwith the legislative competence of the Scottish Parliament. The purpose of my post then was primarily to look at one proposal (from Dr Matt Qvortrup) that was so clearly and demonstrably incorrect that its wider circulation without criticism threatened to skew and mislead the debate. Despite my best endeavours this theory is still making its way around the net – with people being misled by Dr Qvortrup’s expertise in referenda. For those that think my argument may be a partisan one see the view of one excellent and prominent nationalist blogger Lallands Peat Worrier here.
In the earlier post I bemoaned the poor quality of discourse in this area and suggested that commentators (journalists and bloggers) had failed to consider one fundamental question: what can Holyrood actually do? And I suggested that a referendum bill was outwith the scope of Holyrood. Anyhow, following a wonderfully well-argued trenchant response on the question of legislative competence from the Peat Worrier (which together with my original post was reprinted on Charon QC’s law blog for a wider UK legal audience) arguing with ingenuity and flair that Holyrood could so legislate I became conscious in posting replies to some of his commenters, that I had not properly explained here why I was so convinced that the referendum bill fell outwith the competence of the Scottish Parliament, and why it was unsurprising that the office of the Presiding officer should indicate that the bill could not proceed.
The starting point is that Holyrood is fettered. It must act within its powers. It cannot pass legislation that falls outwith its powers, and section 29 of the Scotland Act 1998 which provides (as Peat Worrier excerpts) that “”An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament…” [L&G gloss: from subsection (1) of section 29] and that “A provision is outside that competence so far as … (b) it relates to reserved matters…”.” [L&G glosss 29 (2)] “relates to reserved matters” then being defined by s 29 (3) of the 1998 Act as follows:
“(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”
What comprises reserved matters is determined by Schedule 5 to the 1998 (which is given effect by section 30). The constitutional reserved matters are set out in paragraphs 1 – 5 of Schedule 5. The key provision on any move for Holyrood to legislate on matters which may relate to independence is paragraph 1 of schedule 1 which provides:
(a)the Crown, including succession to the Crown and a regency,
(b)the Union of the Kingdoms of Scotland and England,
(c)the Parliament of the United Kingdom,
(d)the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
(e)the continued existence of the Court of Session as a civil court of first instance and of appeal.”
So paragraph 1 (b) prevents HOlyrood legislating on the Union (which is clearly designed to target Holyrood unilaterally declaring independence) and paragraph 1 (c) is designed to prevent Holyrood legislating on matters that affect the United Kingdom parliament.
So where does this lead us?
Well, what do we know? I mentioned in my previous post that the presiding officer had already rejected a bill because it fell within the constitutional reservation. I think the decision regarding the Civil Appeals bill was almost certainly wrong, but it appears to indicate that the presiding officer’s advisers take a wide interpretation of “parliament” for the purposes of the reservation. And while I see the argument taken by the Peat Worrier that consultation on the issue and the issue itself can be severed (and indeed that seems to underpin the approach in the August 2007 White Paper – although never as explicitly as one would like, given that competence must always have been a consideration given the stark terms of paragraph 1 (b) of Schedule 5 in particular) I think that while a referendum cannot bind the legislature or Westminster or Holyrood in legal theory (depending on the wording of the question and constituting Act) – in reality a positive referendum result will mean that the role of Parliament and the position of the Union is necessarily affected.
I do not think any advocate of a referendum would argue that a yes vote would not lead to independence. The yes vote in a referendum is the holy grail of the supporter of independence. And I would agree that if there is a yes vote then that would trigger the move to independence (unless of course there is to be a second referendum once the negotiations are complete just to make sure – but I do not know SNP policy on this and would be very grateful for any guidance on this matter as party policy issues lie outwith my knowledge base). If the yes vote is the trigger for independence negotiations (and would be viewed as the justification for both the negotiations and the resultant independence/breaking up the UK (* delete inapplicable based on political preference) then the advocates of a referendum must accept that a referendum (while advisory and seeking consultative response) must necessarily have an impact on the position of the UK Parliament (in that independence will mean that the UK PArliament can no longer legislate for Scotland) and necessarily have an impact (albeit a delayed impact) on the Union. Two reservations are then breached.
Given that and adopting a purposive interpretation of the reservation (and the general exclusion of constitutional matters) I am pretty sure that the referendum is not competent.
While my view is firmly that a referendum is not within the competence of the Scottish Parliament I acknowledge the argument developed by the Peat Worrier means that the matter is open for debate, and am very grateful that finally this debate is taking place (if only between two lawyers on their blogs). I’m very much enjoying the debate as I think it is important that this is aired. There is no knock down certainty that Holyrood can legislate here. For the leadership of the SP to assume that concerns of SNP activists as to the dropping of a referendum can be assuaged with a blithe assumption that victory in the election will definitely trigger a referendum (given the legal position – which will remain a constant after the election) is politically naive, I think.
Edit 9th Sept 9 am – this post was written before the new post of eminent commentator Gerry Hassan on the use of the referendum in British politics (with a particular focus on Scotland). This is a very interesting piece – although I note that Mr Hassan merely questions the Dr Qvortrup argument on political grounds (ignoring its legal invalidity as discussed above). Additionally, Mr Hassan does not note the legal problems inherent in the referendum that I am sure must have played a role in the current thinking of the government.
Edited further (at 9.35 am, 9th Sept: I mentioned above that the posts by the lallands peat worrier and myself were also hosted by Charon QC. There have been some fascinating comments there including one from “deebel” who wrote to the Presiding officer in July to ”clarify for me whether matters relating to constitutional issues were reserved, whether the Scottish Parliament using parliamentary time and resources to consider such matters would be acting ultra vires, and whether as Presiding Officer he would have a duty to refuse to allocate parliamentary time to debate such matters. A week later his office said they would get back to me. I subsequently received a reply from the Presiding Officer late July. He advised me that the constitution is a reserved matter . The parliament may debate issues regardless of whether devolved or not, however he had a duty under s31(2) Scotland Act to provide a statement on legislative competence of each Bill on its introduction. His statement must express a view one way or another on whether or not the Bill is or specified provisions of it are within the legislative competence of the Parliament. His statement however does not prevent the Bill from being introduced .”
This is the second in a series of three post on the topic: the first examining Dr Qvortrup’s suggested resolution to the problem and noting the fetters on Holyrood is here; the third (on the Hansard debates on the Scotland Bill) is here.